Hong Kong: a beginning?

In making TRIPS responsive to needs of poor countries?

Published: Tuesday 15 November 2005

Hong Kong: a beginning?

-- The World Trade Organization's (wto) ministerial conference -- scheduled to be held in Hong Kong on December 13-18, 2005 -- provides an opportunity to take stock of the progress in making the Trade Related Aspects of Intellectual Property Rights (trips) more responsive to developing country concerns. The wto has, of course, made some progress in high profile areas such as granting poor countries access to patented aids drugs. But more systemic issues related to intellectual property (ip) protection in developing countries remain neglected. The wto, in fact, has paid scant attention to differential treatment for least developed and developing countries in ip- related issues. The rationale for such differentiation is that though all countries are deemed equal in international fora, they do not fare equally in terms of human development indicators; all nations also don't have equal political or economic clout.

No regard for equity From the 1960s to the 1990s, trade-related treaties often had provisions to ensure that developing and least developed countries would not be unduly burdened by the implementation of uniform standards. For instance, article 36.8 of the General Agreement on Tariffs and Trade states that "Developed contracting parties do not expect reciprocity for commitments made by them in trade negotiations to reduce or remove tariffs...from less-developed contracting parties".

The wto 's Uruguay Round negotiations, which culminated in 1994 with a number of treaties besides trips , marked a dramatic reversal of this position. The new rationale was that differential treatment had not worked for developing countries and they would be better off by being treated as equal. So, ip- related treaties that emerged out these negotiations contain only a limited range of provisions meant to make developing country compliance less burdensome. Many do argue that trips includes flexible provisions that developing countries can use to their advantage, but the reality is that trips commitments are strictly defined. Moreover, the wto negotiations have shown a clear trend of deviating from the practice of according preferential treatment to poor countries.

The gap widens At the same time, there remains today an immense gap between developed and developing countries in terms of human development indicators; there is a similar gap between developing and least developed countries. Their human development indicators show that least developed countries are at a huge disadvantage in nearly all areas. So, it is not only unrealistic but also unfair to expect them to be able to compete on equal footing with developed countries -- or even major developing countries.

The fact that trips does not include a comprehensive differential treatment perspective is a fundamental flaw of this treaty -- particularly with reference to equity. This lacuna was known ever since the agreement was signed. In fact, over the last decade, a number of developing and least developed countries have attempted to push for the (re)introduction of stronger differential provisions in wto treaties. Eventually, at the 2001 wto ministerial conference at Doha, Qatar, all states agreed "that special and differential treatment provisions shall be reviewed with a view to strengthening them and making them more precise, effective and operational". Since then, proposals have been made, debates have taken place and deadlines for adopting measures have been missed: there has been no concrete step towards implementing the Doha declaration.

The debate on differential treatment for least developed and developing countries has largely taken place outside the notice of the public eye. While the question of access to patented drugs is a specific concern which might be somewhat easy to address, broader concerns with regard to the overall trips treaty must be taken more seriously. Otherwise, least developed countries will not be able to benefit from trips. In fact, even in a country like India, where certain industries can benefit from trips, a large majority is quite likely to suffer from the treaty.

It is therefore imperative that the wto addresses in earnest the special needs of least developed and developing countries in trips -- as well as in all other treaties. A beginning should be made in the forthcoming Hong Kong meet.

Philippe Cullet is a senior lecturer in law at the School of Oriental and African Studies, University of London, uk and programme director, International Environmental Law Research Centre, Geneva, Switzerland 12jav.net12jav.net

Subscribe to Daily Newsletter :

Comments are moderated and will be published only after the site moderator’s approval. Please use a genuine email ID and provide your name. Selected comments may also be used in the ‘Letters’ section of the Down To Earth print edition.